If someone has invited another person to perform a sexual act on them, do they have to know or believe that person is underage for them to be convicted of a sex offence against underage persons under the Canadian Criminal Code? That was one of the questions the Ontario Court of Appeal considered and clarified in a recent decision, R. v. Carbone which concerned a charge of “invitation to sexual touching” to a minor under Section 152 of the Criminal Code.

Sexual Favours Exchanged for Tattoo Services Involving Minors

This case involved a tattoo artist who operated a licenced tattoo parlour out of his own home. He made an arrangement with the complainant, a fourteen-year-old girl, and two of the complainant’s friends (both of whom were also 14 years old) to provide them with tattoos at his home. According to the accused (who was aged 31 at the time), he provided the tattoos for an agreed-upon price of $35 apiece, which they did not pay.

He claimed that the three girls told him that their mother would come by later to pay him for the tattoos, but she never did. According to the complainant, they then made an arrangement that she and one of her two friends would perform sexual services for the accused in exchange for the tattoos. The complainant testified that she performed oral sex on the accused as payment for receiving the tattoo. According to her, the accused had not asked her about her age or if she had parental consent to get the tattoo.

The accused, on the other hand, indicated that he had asked one of the complainant’s friends (when initially setting up the arrangement via Facebook messages) how old she was, and she had indicated she was 16. He also testified that the three girls looked 16.

Defences to Invitation to Sexual Touching

As is always the case, the burden of proof in a criminal case is on the Crown to prove beyond a reasonable doubt that the accused is guilty of the offence. However, it can often be a bit more complicated than that when it comes to the accused providing a defence to an accusation against them. This is often true with certain sexual offences, particularly those involving underage persons since there is also the element of whether the accused knew the complainants’ age, was mistaken about it or took reasonable steps to the complainant’s age.

The offence of invitation to sexual touching requires, in part, that the Crown prove the complainant was under 16. While that seems straightforward enough, the language of Section 152 of the Criminal Code does not specifically indicate the mens rea requirement (that is, the criminal intent necessary to be convicted of the crime) as it relates to the accused’s belief concerning the age of the complainant.

Complicating matters is the fact that Section 150.1(4) of the Code addresses possible “defences” to the offence of invitation to sexual touching. This section indicates that an accused having a mistaken belief that the complainant is 16 years of age or older can be a defence to this charge. This defence is only available, however, if the accused person took “all reasonable steps” to ascertain the age of the complainant. The question the Court of Appeal needed to clarify is where the burden of proof lies when the accused is the one providing a defence to a criminal charge of invitation to sexual touching under Section 152.

Burden of Proof

In short, the burden is still on the Crown. The fact that the complainant was actually under the age of 16 at the time the alleged invitation to sexual touching took place was not really in dispute. However, the Court of Appeal ruled that it is not enough for the Crown to prove beyond a reasonable doubt that an accused failed to take reasonable steps under Section 150.1(4) to determine the age of the complainant.

The Crown must also prove that the accused believed the complainant was underage, or was wilfully blind to the matter. The Crown can meet this threshold on the basis of proving actual knowledge of the complainant’s age that the accused possessed or recklessness on the part of the accused. That is, if the accused proceeded to make the sexual invitation (or other sexual act) without putting his or her mind to the complainant’s age. In the case of the latter, this will normally be achieved by proving a failure upon the accused to take reasonable steps to ascertain the age.

Reasonable Steps

In this particular case, the accused testified that he did turn his mind to the complainant’s age and that he believed she was 16 at the time of the incident. The trial judge rejected this evidence because it was determined at the trial that the accused hadn’t taken reasonable steps to determine what the age of the complainant and her two friends were. However, the onus was still on the Crown to prove the accused believed that they were under 16, which did not happen at trial. As such, the Court of Appeal allowed the accused’s request for appeal and ordered a new trial.

As this decision indicates, the rules regarding the burden of proof are complex and frequently evolving. In fact, the case law in this area evolved between the time of the trial and the time the appeal was heard. Seeking expert legal guidance on whether you have taken reasonable steps to ascertain the age of someone you have had sexual relations with or whether it can be proved that you believe that person was of age is always recommended.

Our criminal defence lawyers can advise on how best to protect your rights and defend you in court, including cases involving sexual assault, sexual assault of children and child pornography. We defend individuals charged with a variety of offences, including sex offences, young offenders and assault offences. Contact Hicks Adams LLP in downtown Toronto to discuss the options available to help you through this time. Call us at 416-975-1700 or contact us online to schedule a confidential consultation.